Why not just let the truth speak for itself?

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Vilification disputes do not have to end in court.
There's another way.

Just before Christmas 2004, a Victorian judge brought down his
long-awaited decision on complaints of religious vilification first
brought in 2002 by Victoria's Islamic Council against the
fundamentalist Catch The Fire Ministries. He found that Pastor
Daniel Scot had, in breach of Victoria's new Racial and Religious
Vilification Act, incited hatred against Muslims. An unholy row has
broken out over this "infringement" of religious freedom and/or
freedom of speech.

As one who does not believe that any "anti-vilification"
legislation deals effectively with hate speech - though I drafted
them as chairman of the Law Reform Commission in Western Australia
in 1990, and administered them as commissioner for equal
opportunity in two states, and a HREOC hearings commissioner - I
have a suggestion for reform.

Vilification is a public act that associates people with evil,
or offensive or dangerous behaviour because of their race or
religion and encourages intolerance and antisocial acts. It
intimidates or frightens targets that may already be vulnerable
because of experience of persecution, unpopularity and minority
status. It takes away their confidence to participate in public
life; causes distress, pain, psychological damage and illness,
encourages distrust and appeals to our instinctive desire as a
group to reject, detest or despise difference, often expressed as a
fear that our culture cannot survive "too much" difference.

We have two options: to build on trust and goodwill, or try to
control the expected bad behaviour of others. If the former,
expecting fellow citizens to reciprocate if we behave generously
towards them, our response would be to emphasise communication,
education, understanding and agreement, as present
anti-discrimination laws do. But this does not work for fanatics
and fundamentalists, bigots and bullies: these, we may have to
coerce and deter.

Resourcing, supporting and enabling targets to 'speak back' should be the remedy of choice.

The primary objection to anti-vilification laws is, as Sydney
broadcaster John Laws claimed after he was directed to apologise
for on-air "poofter-bashing", that they infringe "freedom of
speech", in his case ridicule of a gay couple (the law in NSW
covers homosexual vilification). Others like Scot would squat under
the umbrella of "genuine religious belief". Yet others, including
some victims, believe these laws encourage sneakier vilification
and discrimination, or trivial complaints by the oversensitive or
manipulative. Another view is that these laws give too many "outs"
for blatant racists and religious crusaders, and there is some
truth in that.

There will always be a need to control hate groups that
deliberately incite serious hatred. Most racial and religious
vilification is not of this magnitude.

If we fear "too much" difference, we need to strengthen our
culture, through effective conversations and facing what we fear.
There should be a range of responses to public vilification, not a
single remedy - just as there is no single way to communicate
effectively or protect vulnerable people in each circumstance. More
effective communication means evoking agreement in the listener,
because the speaker calls on shared experience, familiar values and
standards of behaviour and palpable sincerity. That is why
resourcing, supporting and enabling targets to "speak back" should
be the remedy of choice.

The best way to enable hate speech targets to counter,
contradict and "speak back" in their own voice to those who vilify
them, in a way that is as "valid" to the listener and that
increases their own confidence and conversational presence in the
community, is not through a complaint or a court case.

What should be tried is giving an independent statutory office
such as the various equal opportunity or anti-discrimination bodies
in the states, or a court or tribunal, the power to authorise the
use of community resources, with or without an application by a
victimised group, to set the record straight, promptly. They could
approach the target, not wait to be approached, and advise them on
the best way to reach the audience affected by the public lies,
open up effective access to the same paper or newsletter, publish
the right ads, design and place the posters, provide TV or radio
talkback - whatever worked.

It would only cover serious vilification against targets
"silenced" by opponents who were more numerous and articulate,
better financed and more media-savvy, and who were already
disadvantaged and discriminated against. That would rule out
bullying by campaigning, already influential groups or overuse by
the oversensitive.

The advantage would be its immediacy: the vilifier would not
have to co-operate and there would be no need to prove
responsibility or punish anyone. It would encourage more, not less,
discussion. The relative power of the hate speaker could be
directly challenged. There would be more "facts" in the
conversation. Victims' own voices would contradict the "truth"
claims of hate speakers and their own validity.

How might it work in this case? Muslims wounded by gross
misinformation could directly contradict Scot's claim to "validity"
by distributing the facts in the most effective way, to the same
people as went to his seminar, read his newsletter and his
photocopied "book", or published articles, whether he liked it or
agreed or didn't agree - as an entitlement, with the support of the
state.

No court case, no years of waiting for an outcome, no trumpeting
of win or lose.

Religious freedom is fragile, but serious vilification
undermines all faiths: it's time for a much more nuanced
response.

Moira Rayner, a lawyer and writer, is the deputy managing
director for the Council for Equal Opportunity in Employment
Limited. This article appears on NewMatilda.com